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Unformatted text preview: nations and Inquiries Under the Americans with Disabilities Act: A View from the
Inside, 64 Templ. L. Rev. 521, 539 (1991), citing H.R. Rep. No. 485 101st Cong. 2d
Sess. pt. 3 at 26; S. Rep. No. 116, 101st Cong. 1st Sess. (1990). In the present case, Sharp
has already identified himself to Prevo's as HIV positive and planned to identify himself
further by discussing HIV and AIDS at a local high school.
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At the same time, the employer need not take the employee's word for it that the
employee has an illness that may require special accommodation. Instead, the employer
has the ability to confirm or disprove the employee's statement. If this were not the case,
every employee could claim a disability warranting a special accommodation yet deny
the employer the opportunity to confirm whether a need for the accommodation [*1095]
exists. We believe the purpose of the ADA was not to create impediments for such
employer-employee co-operation, but to promote an interactive dialogue between an
employer and employee to discover to what extent the employee is disabled and how the
employee may be accommodated, if at all, in the workplace.
Determination of a Direct Threat
Next, Prevo's argues that in order to determine whether Sharp posed a direct threat to the
health and safety of other workers, it was authorized to require Sharp to undergo a
medical examination of his condition. The EEOC argues that a medical opinion as to
Sharp's direct threat was necessary prior to the medical examination, and that medical
testimony showed the risk of transmission to be so low that a medical examination
[**18] to determine the existence of a direct threat was unnecessary.
The statute allows employers to require as a qualification for employment that the
disabled individual does not pose a "direct threat to the health or safety of other
individuals in the workplace." 42 U.S.C.A. 12113(b); 29 C.F.R. 1630. 15(b)(2) (1996).
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08